Praveen Mahajan ORDER
Praveen Mahajan, Member (A)
1. Through the medium of this O.A., the applicant has sought the following reliefs:-
"(a) Quash and set-aside Order dated 30/11/2015 and Order dated 21/03/2016.
(b) Declare and hold that the undertaking/consent (for adjusting the amount of alleged recovery from the arrears of family pension) taken by respondents from the Applicant is void ab-initio and has no legal sanctity.
(c) Direct the respondents to release the arrears of family pension to the Applicant without any deductions as per the extant rules and law of land.
(d) Direct the respondents to pay interest @18% p.a. on the arrears of family pension (supra) to the Applicant till the payment is released to the Applicant.
(e) Direct the respondents to pay the family pension to the Applicant regularly and without any default.
(f) Award cost in favour of the Applicant and against the respondents."
2. The brief facts of the case are that the applicant is a widow of late Sh. Jagbir Singh, who was appointed as Driver in Delhi Transport Corporation on 17.01.1983. The husband of the applicant was served charge sheet on 02.12.1985 and inflicted with penalty of removal from service w.e.f. 07.05.1986. These orders were challenged by the husband of the applicant in the Labour Court. Vide an award dated 16.03.1999, the Labour Court held that the enquiry conducted against the late husband of the applicant was in violation of principles of natural justice. Accordingly, the enquiry and the penalty orders were set aside, and the respondents were directed to reinstate the husband of the applicant with continuity of service and to pay full back wages to him. The respondents vide their order dated 24.06.2002 reinstated the husband of the applicant with continuity of service and paid him full back wages along with increments for the intervening period and other attendant benefits. The payments emanating from the above noted orders were given in 2003. Thereafter, he joined his duties at Maya Puri Depot, New Delhi, as directed by the respondents.
3. The husband of the applicant died in harness on 12.08.2013. The applicant in OA made a request to the respondents to release the family pension and other retiral benefits, which accrued on death of her husband (Sh. Jagbir Singh). She submitted the documents in November, 2013. When the respondents did not release the family pension to the applicant, she obtained the information under RTI Act, which showed that as per the respondents, an excess payment of Rs. 2,09,389/- was paid to late Sh. Jagbir Singh. The notings received under the RTI showed that the respondents intended to recover the excess amount from the arrears of family pension. It was also mentioned that the employer share of Rs. 76,310/- along with interest is payable to Pension Cell and the said amount is also recoverable in the same manner. Copies of internal noting sheets dated 18.12.2014 and 22.12.2014 are available at Annexure A-7.
4. The applicant refuted the averments made by the respondents stating that the respondents have no legal authority to withhold her family pension. The applicant states that she was called by the respondents in their office, and told that her thumb impressions are required on some documents which would enable them to release the family pension to the applicant along with arrears. She avers that the contents of the documents were not disclosed to her nor a copy of the said documents given to her. The respondents also took the signatures of her minor son on the above noted documents (who being minor could not have entered into any contract).
5. On 30.11.2015, the applicant received the impugned order wherein it was recorded that she had agreed to adjust a sum of Rs. 2,09,389/- with extra interest from the arrears of the family pension due to her. It is further averred that the applicant, who is an illiterate lady was given to understand that her thumb impression is/was necessary on the above noted agreement/undertaking for releasing the family pension and other retiral benefits to her. Without understanding the consequences, she had put her thumb impression on the letter dated 25.02.2015, which she could not read. Hence, the above noted agreement/undertaking taken from the applicant by the respondents has no legal sanctity and is not sustainable in the eyes of law.
6. The applicant then visited the office of respondents and mentioned that she had mistakenly put her thumb impression on the documents (i.e. undertaking) and requested them to release her family pension without deductions. On 26.02.2018, the applicant also withdrew her earlier letter/undertaking, which had been obtained by her by misrepresenting the facts. The respondents vide their order dated 21.03.2016 informed the applicant that she had not deposited the amount of Rs. 2,14,401/- plus interest, hence they are not in a position to release the family pension to her.
7. The applicant has relied upon the judgment of the Jodhpur Bench of the Tribunal in the case of Rekha Chouhan v. UOI & Ors., (OA-313/1995) dated 17.05.1996 and judgment of the Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih & Ors., MANU/SC/0621/2014 : 2014(8)SCALE 613 in support of her contentions.
8. The respondents in their counter affidavit submit that the workman (applicant's husband) was removed from the services of the respondent Corporation w.e.f. 08.05.1986. He was reinstated in service vide letter dated 24.06.2002 with continuity of service. The workman submitted his bill for Rs. 9,74,063/- for the period from January, 1986 to June 2002. The Management in turn submitted his calculation bill w.e.f. 08.05.2006 to June, 2002 for an amount of Rs. 7,64,674/-. The workman was paid Rs. 4,64,996/- on 07.03.2000 and further payment of Rs. 5,09,067/- was made to him on 18.08.2003. Thus, bill amount of Rs. 9,74,063/- was paid to Sh. Jagbir Singh including the employee's share of CPF through bank attachment. Hence, a sum of Rs. 2,09,389/- was paid in excess to the applicant's husband but no effort was made to recover the said excess amount from him.
8.1 The respondents state that after the death of the employee, his widow filled the forms for DTC family pension, which were duly forwarded to the Pension Cell. It is at that point of time that the Accounts Department of DTC informed that Rs. 76,310/- (CP Fund) was paid to the applicant directly through bank attachment. The applicant (widow of late Sh. Jagbir Singh) was requested on 20.01.2015 to deposit Rs. 5,38,629/- (Rs. 2,09,389/- paid excess to Sh. Jagbir Singh through bank attachment plus interest calculated on the amount). In response, the applicant gave the undertaking dated 25.02.2015 and requested that recovery of principal amount of Rs. 2,09,389/- may be recovered from the arrears of pension and the remaining interest amount may be waived off. On 30.11.2015, the applicant was again requested to deposit the amount of Rs. 2,14,401/- on account of excess payment paid to her husband with interest from the Pension Trust, followed by another letter dated 21.03.2016. Since she did not deposit the amount, the family pension could not be released to her.
8.2 The respondents state that the applicant of her own volition agreed that the principal amount of Rs. 2,09,389/- should be recovered from her pension and also requested to waive off interest. They deny that the applicant was called in their office and was asked to sign some documents required for sanction of pension, which they state, was done voluntarily.
9. I have gone through the facts of the case and considered the rival submissions. It is not disputed that the late husband of the applicant received a payment of Rs. 9,74,063 in the year 2003. A sum of Rs. 2,09,384/- along with interest is sought to be recovered by the respondents vide the impugned order dated 30.11.2015.
10. During the course of hearing, learned counsel for the applicant Sh. Sourabh Ahuja drew attention of the Bench to the law laid down by the Hon'ble Supreme Court in the case of Rafiq Masih (supra) wherein few situations have been stipulated where recoveries from the employees are impermissible in law. These have been laid down in Para-12 of the aforesaid judgment. The conditions are as follows:-
"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
Sh. Ahuja stated that the case of the applicant is squarely covered by the Clauses No. (i), (ii), (iii) & (v) enumerated above. The learned counsel further cited the judgment of Jodhpur Bench of Central Administrative Tribunal in the case of Rekha Chouhan (supra) (OA-313/1995) dated 17.05.1996 wherein it was held that family pension is the exclusive right earned by the widow of the deceased from which no deduction can be made by Govt. or any other authority. He also relied upon the judgment of the Hon'ble Supreme Court in the case of S.K. Mastan Bee v. General Manager, South Central Railway and Anr., MANU/SC/1094/2002 : (2003) 1 SCC 184 in support of his contention that if the applicant is illiterate and is unaware of her legal rights, lenient view should be taken if she is otherwise eligible for the benefits under law.
11. Per contra, the learned counsel for the respondents Sh. Umesh Joshi took the Bench through the facts of the case as given in the counter affidavit and emphasized that this was a case of inadvertent excess payment made to the applicant and the respondents are within their rights legally to recover the excess payment made to the applicant's husband. More so, in view of the fact that the applicant herself has given an undertaking asking the respondents to recover the excess amount from the retiral benefits due to her.
12. I have gone through the facts of the case carefully. There is no denying the fact that the judgment of the Hon'ble Supreme Court in the case of Rafiq Masih (supra) comes to the aid of the applicant. It has been held therein in unambiguous terms, that recoveries from employees belonging to Group-III and Group-IV, (by the employer), are impermissible in law. The applicant's husband was a Group-C employee who retired almost twelve years before the order of demand for recovery was issued by the respondents. There is no dispute that the alleged excess amount was paid on account of negligence of the respondents. In the counter affidavit, it is clearly mentioned that the applicant's husband submitted a bill for Rs. 9,74,063/- before the Implement Cell for the period from January, 1986 to June, 2002. The Management submitted its calculation bill w.e.f. 08.05.1986 of June, 2002 for Rs. 7,64,674/-. Despite their own (less) calculation, the respondents chose to make excess payment of Rs. 9,74,063/- to late Sh. Jagbir Singh. For an error committed by them, they now want to claim interest on the excess payment of Rs. 2,09,389/-, which to my mind, is extremely unfair. It is not the case of the respondents that the excess payment was made on account of fraud or collision on part of the husband of the applicant. Further, a recovery from the applicant, at this stage would be extremely harsh on her and would far outweigh equitable balance of the employer's right to do so. Hence, the current O.A. gets covered on all fours by the protection granted to the employees, in Rafiq Masih (supra).
13. The entire case of the respondents hinges on the fact that in view of the undertaking given by the widow (the applicant in OA), they are legally correct in demanding the refund of the excess amount paid to the applicant's husband. During the course of hearing, learned counsel for the respondents produced a copy of the letter/undertaking dated 25.02.2015 wherein the applicant has requested the respondents that the excess amount paid to her husband on 18.08.2003 should be recovered from her pension. Obviously, the contents of the letter could not have been in her knowledge since she has only put a thumb impression in lieu of having agreed to these conditions. The signatures of the minor son on the application also do not strengthen the case of the respondents since he was a minor at that point of time. This fact (that he was a minor) has not been disputed by the respondents either in the counter or during the course of hearing. The Hon'ble Supreme Court has held that an illiterate widow, who is unaware of her rights is entitled to family pension and the delay to enforce that right does not impede her claim for grant of family pension. The same rationale would apply in the present case inasmuch as here too the applicant is an illiterate lady who was apparently not aware of the consequences of her putting her thumb impression on a letter, the contents of which she did not understand nor the consequences of the same on her family pension/retiral benefits.
14. Similarly, Para-18 of Jodhpur Bench judgment in the case of Rekha Chouhan (supra) relied upon by the applicant is relevant to the facts of the present case. The same is reproduced as under:-
"It is commonly held that pension is given to a retired employee or his/her nominee not only to maintain himself but also for the survival of the family members too and the same cannot be stopped without application of mind in an arbitrary manner as has been done in this case. Family pension is an exclusive right earned by the widow of deceased Railway employee or Government employee and this is not the inheritance earned by her. Therefore, the amount of family pension is her own property from which no deduction/withdrawal can be made by Government or any other authority as she did not inherit such property according to law of inheritance. Any attempt to stop such payment or recover dues from it is illegal. This is because the applicant has earned such family pension as a means of social welfare measure under which family pension scheme introduced in order to give financial relief to survivors of the deceased Railway employee. In the circumstances, stoppage of full family pension by the respondents was illegal, arbitrary and without application of mind as also without any opportunity to the applicant."
It has been held that no one has a right to deduct or withdraw any amount from the family pension of the widow, which is her own property. In view of the aforesaid discussions, I hold that the undertaking or consent, given by the applicant has no legal sanctity and cannot be used as a handle to recover the excess amount from retiral benefits of the applicant.
15. The O.A. is allowed. Impugned orders dated 30.11.2015 and 21.03.2016 are quashed and set aside. The respondents are directed to pay family pension to the applicant and release the arrears without any deductions, as per law. No costs.
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